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“Hostilities” and War Powers: Let’s Choose the Constitution

Last week Rep. Jerrold Nadler of New York warned that "if we don't want to become an empire instead of a republic," Congress must reassert its control of the war power under Article II, Section 8, of the U.S. Constitution, which reserves to Congress the sole right to declare war.

The occasion was the debate over the American military intervention in Libya's civil war. The White House had told Congress that American military actions in Libya "are distinct from the kind of 'hostilities' contemplated by" the War Powers Act of 1973. Because President Barack Obama does not consider the bombing of Libya to be "hostilities," he sees no need for Congressional authorization under the War Powers Act, let alone under the Constitution. Congressman Nadler disagrees. "The president is becoming an absolute monarch," he said.

As a Democrat, Nadler cannot be accused of leveling a partisan attack on President Obama. Indeed, Mr. Nadler's words echo the title of the 1999 book, A Republic, Not an Empire, by the Republican Patrick Buchanan.

"We have been sliding," Nadler asserted, "for 70 years to a situation where Congress has nothing to do with the decision about whether to go to war or not."

In fact, the slide to which Congressman Nadler referred has been going on for many more than seventy years. Throughout much of the 19th and 20th centuries — long before Pearl Harbor — presidents undermined Congressional war powers in two ways: First, presidents incited wars or opened hostilities and then sought (and received) Congressional declarations after the fact. Second, they conducted military interventions and long-term occupations with no declarations of war at all.

The year 1846 marked the first time an American president faced criticism on this issue by congressmen or senators of his own party. The war was against Mexico, and the president was a Democrat, James K. Polk.

In 1845 the United States had annexed the Republic of Texas, which had been independent of Mexico for nine years. Importantly, Mexico contested the borders claimed by Texas. In January 1846 President Polk ordered American troops into the disputed territory. When the inevitable clash occurred, Polk told Congress that "the two nations are now at war." Congress needed only to declare the fact, which it did in May 1846.

One of Polk's non-Democrat critics was a young Whig congressman from Illinois named Abraham Lincoln. Lincoln argued that, "The provision of the Constitution giving the war-making power to Congress" was predicated on the fact that "kings had always been involving and impoverishing their people in wars, pretending generally, if not always, that the good of the people was the object." In a democracy, "no one man should hold the power of" embarking on war.

Some Democrats, led by Sen. John C. Calhoun, also opposed the Mexican-American War. Their opposition was political as well as Constitutional. Calhoun realized that a Democrat would not always be president. Empowering the president to incite war and then request a Congressional declaration afterward would set too dangerous a precedent.

In the 1890s presidents began intervening in the Caribbean and in Central America. They picked up the pace in the first two decades of the 20th century. President Woodrow Wilson, who complained that the Constitution previously had "hampered and limited" the president, did so nine times.

"Living political constitutions must be Darwinian in structure and in practice," Wilson said, and so he welcomed the growth of presidential power as proper governmental evolution. Thus empowered, he embarked on an eight-year occupation of the Dominican Republic and a nearly two-decade occupation of Haiti. Wilson also ordered an invasion of Mexico to find Pancho Villa, whose men had sacked Columbus, New Mexico, in 1916. Significantly, such interventions were termed "police actions," and so none involved a Congressional declaration of war.

World Wars I and II did earn declarations of war from Congress, but as Nadler pointed out, 1941 marks the last such declaration. While one might legitimately argue that chasing Pancho Villa was indeed a "police action," it's difficult to make the same case for the wars in Korea and Vietnam.

Since the end of the Vietnam War, Congress has appealed not to the Constitution but to a resolution of its own making, the War Powers Act of 1973. This act allows a president to engage in hostilities for up to sixty days without Congressional approval, so long as he tenders 48 hours notice after the fact. The act was a response to the deceptive policies of President Lyndon Johnson, who had used the wide latitude given him by Congress in the 1964 Gulf of Tonkin Resolution to escalate the war in Vietnam.

To turn to the War Powers Act is to appeal to legislation that is itself an admission of weakness. At the end of the sixty days, Congress has consistently continued funding wars because the safety of American soldiers is always at stake.

But why appeal to a law approved by a Congress that has acquiesced in its own Constitutional demotion ever since President Harry Truman in 1950 started a war in Korea without a Congressional declaration and under a UN flag? Let's appeal instead to the Constitution.

More than 36,000 Americans were killed in Korea. But Truman called it a "police action," not a war, just as President Obama denies that the United States is involved in "hostilities" in Libya. Americans, who have easy access to dictionaries and to the Constitution, know better. This should include Congressmen, who do sometimes choose Constitutional principle over party. It's rare — but, as in the case of Rep. Nadler, it can happen.

John C. Pinheiro is associate professor of history at Aquinas College. He is the author of "Manifest Ambition: James K. Polk and Civil-Military Relations during the Mexican War" (2007).